Doy v Gunn

In a clinical-negligence claim, where liability depends on which of two conflicting accounts of a consultation is accepted, the trial judge must resolve the factual dispute on the balance of probabilities. It is permissible to test recollection and a clinician’s reconstruction against contemporaneous records, even where the note is inadequate and the clinician has no actual memory. Evidence of usual practice may assist in assessing the reconstruction. An appellate court should not interfere merely because another view is possible, particularly where the trial judge saw and heard the witnesses. Findings on whether the presentation required immediate referral will stand absent material error.

Kieran Doy brought clinical-negligence proceedings against Dr Kathleen Gunn, alleging that she should have referred him to hospital during an evening consultation and that an earlier referral would have prevented bacterial meningitis. Owen J accepted that referral would have led to antibiotics and prevented the meningitis, but held that Dr Gunn had not been negligent. The appeal challenged that conclusion, principally by attacking the judge’s findings about Kieran’s symptoms, the evidence given by his mother, and Dr Gunn’s reconstruction of a consultation recorded inadequately and recalled only through usual practice. The central issue was whether the judge had adopted an impermissibly simplistic approach or had been entitled to resolve the factual dispute by reference to the contemporaneous evidence.

Appeal dismissed. The issue on appeal was breach of duty; causation had already been decided in Kieran Doy’s favour.

1. The Court rejected the submission that the judge had used an impermissibly simplistic methodology. The agreed GP evidence made referral mandatory if the mother’s account was accepted, but not if Dr Gunn’s account was accepted. The judge therefore had to decide which account was reliable on the balance of probabilities.
2. Given the passage of time, the absence of any actual recollection by Dr Gunn and the inadequacy of her note, it was appropriate to test the competing evidence against contemporaneous records relating to the period before, during and after the consultation. The judge was entitled to use those records as a benchmark for assessing reliability.
3. The judge was entitled to accept Dr Gunn’s reconstruction. The recorded absence of fever and rash, a soft abdomen, normal ears and alertness supported her account that she had examined Kieran. Her usual practice was also relevant. The judge was entitled to reject the mother’s account where it lacked support in the records of the earlier consultations and was inconsistent with other evidence about drowsiness, feeding and hydration.
4. The microbiological evidence established that Kieran was probably bacteraemic, but did not establish that he must have shown signs of established infection requiring immediate referral. It was capable of being consistent with Dr Gunn’s account. Any overstatement in describing that evidence as adding weight did not undermine the decision.
5. No material error was shown. The trial judge had the advantage of seeing and hearing the witnesses, and his findings were open to him on the evidence. The finding that Dr Gunn was not negligent therefore stood.

• High Court of Justice, Queen’s Bench Division: Owen J, in a judgment handed down on 15 December 2011, found that an earlier referral would have prevented the meningitis but held that Dr Gunn had not been negligent.
• Court of Appeal (Civil Division): dismissed the appeal against the finding on breach of duty: [2013] EWCA Civ 547.